O.C.G.A.

O.C.G.A. § 11-3-116 (2019)

Joint and several liability; contribution

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) Except as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, indorsers who indorse as joint payees, or anomalous indorsers are jointly and severally liable in the capacity in which they sign. (b) Except as provided in subsection (e) of Code Section 11-3-419 or by agreement of the affected parties, a party having joint and several liability who pays the instrument is entitled to receive from any party having the same joint and several liability contribution in accordance with applicable law. (c) Discharge of one party having joint and several liability by a person entitled to enforce the instrument does not affect the right under subsection (b) of this Code section of a party having the same joint and several liability to receive contribution from the party discharged.

History

Code 1981, § 11-3-116, enacted by Ga. L. 1996, p. 1306, § 3.

Annotations

Law reviews. For article, “Wills, Trusts & Administra-

tion of Estates,” see 53 Mercer L. Rev. 499 (2001).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 14-217 and 109A-3-118 and former Code Section

11-3-118 are included in the annotations for this Code section. Liability of two or more makers to note. - Under this section, whenever two

or more persons sign as maker they are jointly and severally liable unless instrument in its own language specifies obligation differently, e.g., “we jointly promise” or “we promise severally.” Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598, 1968 Ga. App. LEXIS 1516 (1968) (decided under former Code 1933, § 109A-3-118). “We promise to pay.” - A promissory note signed by two or more persons as makers, and containing the words, “I, we, or either of us promise to pay,” imports joint and several liability of makers. This comports with this section. Powell v. Mobley, 166 Ga. 163, 142 S.E. 678, 1928 Ga. LEXIS 246 (1928) (decided under former Ga. L. 1924, p. 126, § 17(7)). Where negotiable instrument contains words “we promise to pay” and is signed by three parties, absent specific provision to contrary, comakers are jointly and severally liable under provisions of this section. Simpson v. Wages, 119 Ga. App. 324, 167 S.E.2d 213, 1969 Ga. App. LEXIS 1086 (1969) (decided under former Code Section 11-3-118). Where promissory note is signed by three persons as comakers and contains language “we promise to pay,” liability is joint and several, and an action against two comakers is sustainable even though one comaker is dismissed as a party defendant. Hubert v. Lawson, 146 Ga. App. 698, 247 S.E.2d 223, 1978 Ga. App. LEXIS 2513 (1978) (decided under former Code 1933, § 109A-3-118).

“Lessees agree to pay.” - Lessees under a contract which provided that “lessees agree to pay” were jointly bound under the contract. Brackin Tie, Lumber & Chip Co. v. McLarty Farms, Inc., 95 F.R.D. 328, 1982 U.S. Dist. LEXIS 16204 (S.D. Ga. 1982), aff’d, 704 F.2d 585, 1983 U.S. App. LEXIS 28357 (11th Cir. 1983) (decided under former Code Section 11-3118). Failure to join one of two makers. - Contention that failure of plaintiff to join one of two makers of note as party defendant, without showing that party defendant was dead or could not be found, was fatal to plaintiff’s suit on note, was without merit, since under paragraph (7) of former Code 1933, § 14-217, makers are considered jointly and severally liable unless otherwise specified. Bullard v. Holman, 184 Ga. 788, 193 S.E. 586, 1937 Ga. LEXIS 640 (1937) (decided under former Code 1933, § 14-217). Individual debt of one of parties executing security deed. - See Americus Fin. Co. v. Wilson, 189 Ga. 635, 7 S.E.2d 259, 1940 Ga. LEXIS 363 (1940) (decided under former Code 1933 § 14217); Bank of LaFayette v. Giles, 208 Ga. 674, 69 S.E.2d 78, 1952 Ga. LEXIS 310 (1952) (decided under former Code 1933 § 14-217); Cordele Banking Co. v. Powers, 217 Ga. 616, 124 S.E.2d 275, 1962 Ga. LEXIS 343 (1962) (decided under former Code 1933 § 14-217); Hill v. Perkins, 218 Ga. 354, 127 S.E.2d 909, 1962 Ga. LEXIS 499 (1962) (decided under former law).

RESEARCH REFERENCES Am. Jur. 2d. 11 Am. Jur. 2d, Bills and Notes, §§ 43, 99, 128. 12 Am. Jur. 2d, Bills and Notes, §§ 427 et seq., 439, 447 et seq., 471. 17A Am. Jur. 2d, Contracts, § 395. 20 Am. Jur. 2d, Counterclaim, Recoupment, and Offset, § 83. 45 Am. Jur. 2d, Interest and Usury, §§ 18, 51. U.L.A. Uniform Commercial Code (U.L.A.) § 3116.

ALR. Effect of death of one of joint payees of bill or note, 57 A.L.R. 600. Payment to, or endorsement by, indicated beneficiary of check purporting to be payable or endorsed to one person “for another,” 61 A.L.R. 272. Liability of bank for overpayment of Federal Government check, 96 A.L.R. Fed. 908.

Notes of Decisions

Cited in 8 cases, 1984–2003 · leading case: South v. Bank of Am., 551 S.E.2d 55 (Ga. Ct. App. 2001).

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South v. Bank of Am., 551 S.E.2d 55 (Ga. Ct. App. 2001). · cites it 8× “Without the protection of OCGA § 7-1-816, South argued, the redemption constituted a breach of contract and a violation of former OCGA § 11-3-116, 3 which was effective at the time of the transaction.”

Cagle v. Davis, 513 S.E.2d 16 (Ga. Ct. App. 1999). · cites it 2× “OCGA § 11-3-116 (b). The CDs were identified as assets in the divorce action by Cagle, as required by Uniform Superior Court Rule 24.”

Gunter v. Hamilton Bank, 411 S.E.2d 115 (Ga. Ct. App. 1991). · cites it 2× “347 ( 317 SE2d 323 ) (1984); OCGA §§ 11-3-116 (b) and 11-3-202. Apparently recognizing this problem, the bank filed a supplemen *380 tal affidavit in support of its motion for summary judgment which stated that the consideration for Gunter’s execution of the note was the bank’s…”

Trammell v. Farmers & Merchants Bank, 317 S.E.2d 323 (Ga. Ct. App. 1984). · cites it 2× “, deny receiving such oral notifications. It is, however, undisputed that the plaintiff did notify the bank of the forgery in writing some 17 months after receiving her bank statement containing the cancelled check in question.”

Hattaway v. Keefe, 381 S.E.2d 569 (Ga. Ct. App. 1989). · cites it 2× “Hattaway appeals from the entry of a judgment on a jury verdict in favor of Mattie Bayne Keefe.”

Peavy v. Bank South, N.A., 474 S.E.2d 690 (Ga. Ct. App. 1996). · cites it 2× “) OCGA § 11-3-116 (b). “An instrument is converted when: .”

South v. Bank of Am., 579 S.E.2d 80 (Ga. Ct. App. 2003). · cites it 2× “South’s telephone request for redemption of the $40,000 CD was made in accordance with all conditions of the account and regulations of the bank, the bank is protected from liability by OCGA §§ 7-1-816 and 7-1-820.”

Citizens & S. Nat'l Bank v. Sun Belt Elec. Constructors, Inc. (In Re Sun Belt Elec. Constructors, Inc.), 64 B.R. 377 (Bankr. N.D. Ga. 1986). · cites it 2× “§ 11-3-302 because it is not a holder as defined by the Commercial Code: “Holder means a person who is in possession of .”

— 11-3-116(b) — 1 case

Citizens & S. Nat'l Bank v. Sun Belt Elec. Constructors, Inc. (In Re Sun Belt Elec. Constructors, Inc.), 64 B.R. 377 (Bankr. N.D. Ga. 1986). “§ 11-3-302 because it is not a holder as defined by the Commercial Code: “Holder means a person who is in possession of .”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.